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The Google engineer who caused a news and social media firestorm over a memo criticizing
the company’s diversity efforts may get a boost from a recent appeals court win for
a Cooper Tire worker fired for shouting racist insults at replacement workers during
a strike.

Google
fired James Damore for the memorandum, in which he argued that conservative viewpoints
are censored at the company and said the gender inequality in software engineering
work can be explained largely by biological differences. He filed a National Labor
Relations Board complaint against the company Aug. 7.

The Eighth Circuit one day later agreed with an NLRB order forcing Cooper Tire to
rehire Anthony Runion. He had been fired by the company for yelling “Hey anybody smell
that? I smell fried chicken and watermelon,” and other similar comments at a group
of mostly black replacement workers.

An NLRB administrative law judge acknowledged that Runion’s comments were “racist,
offensive, and reprehensible” but said the company violated federal labor laws by
firing him for legally protected collective activity—participating in a strike—that
didn’t involve violence. The company took the dispute to court and argued that it
has a right to enforce rules against racial harassment, but a divided U.S. Court of
Appeals for the Eighth Circuit
said federal anti-bias laws didn’t require that it go so far as to fire Runion.

That decision could come in handy for Damore in his NLRB
case against Google. Although he was fired for advancing stereotypes that some workers
may find offensive, Damore says the tech giant retaliated against him for concerted
activity protected under the National Labor Relations Act.

“We just saw an appellate court upholding the board saying a striker yelling overtly
offensive racial epithets at a group of workers was not enough to lose the protection
of the NLRA,” Seth Borden, a McGuireWoods LLP partner who represents employers in
NLRB litigation, told Bloomberg BNA. “And now they’re going to be considering whether
or not these sort of bland and hackneyed gender stereotypes in this guy’s rambling
manifesto were enough.”

Google referred Bloomberg BNA to a company blog post in response to a request for
comment.

“First, let me say that we strongly support the right of Googlers to express themselves,
and much of what was in that memo is fair to debate, regardless of whether a vast
majority of Googlers disagree with it,” Google CEO Sundar Pichai wrote. “However,
portions of the memo violate our Code of Conduct and cross the line by advancing harmful
gender stereotypes in our workplace.”

‘Heads On’ Collision

The conflict between labor and workplace discrimination laws may be coming to a boiling
point. The Google and Cooper Tire cases “raise an interesting juxtaposition of two
federal laws that in these fact patterns may be running heads on into each other,”
John Raudabaugh, a former NLRB member, told Bloomberg BNA.

A federal judge in Washington, D.C., wrote in an
opinion last year,
Consolidated Communications Inc., that she is concerned about what she referred to as the board’s “enabling approach”
toward “sexually and racially demeaning misconduct of some employees during strikes.”

Although the contexts are clearly different, the same concerns could arise in Damore’s
case.

The Equal Employment Opportunity Commission also recently acknowledged an open question
about where protected labor activity becomes unlawful discrimination or harassment.
The agency
said it “has not considered this matter” in response to a request for an EEOC legal opinion
on whether Title VII and other EEO laws conflict with the NLRA, specifically as construed
in the Cooper Tire and Consolidated Communications cases.

“We recognize the importance of this issue and appreciate your focusing our attention
on it,” the EEOC said.

The EEOC also said in June 2016 that it needs to “confer and consult” with the board
to “determine what conflicts may exist, and as necessary, work together to harmonize
the interplay of federal EEO laws and the NLRA.”

The issue has important implications for businesses, workers, and labor practitioners
alike.

Borden noted factual distinctions between the two situations, but he acknowledged
the challenging interplay.

“As the scope of protection has been so greatly expanded over the years, the area
where these issues come into conflict has become more aggravated, and I think that’s
reflective in these cases,” Borden said. “There’s real tension there, and I definitely
think we’re seeing that tension play out in more and more cases.”

The NLRA itself states that it’s official U.S. policy to encourage collective bargaining
and protect workers’ right to associate freely for the purpose of negotiating terms
and conditions of employment. Federal anti-bias laws such as Title VII establish a
national policy of protecting workers from discrimination and hostile work environments.

That raises questions like the one posed by the Google and Cooper Tire cases: If racially
offensive picket line conduct is protected by the NLRA, what about sexist communications
on a shop floor?

NLRA Likely Protects Damore to Some Degree

Damore’s case may come down to whether the memo qualifies as the kind of collective
activity protected under federal labor law and whether it was meant to address terms
and conditions of employment. Several lawyers and former board members told Bloomberg
BNA they leaned toward a determination that Damore’s memo is
protected.

At the very least, Borden said, some portions of the memorandum are likely to be considered
concerted activity for the purpose of addressing work conditions. All noted that the
memo contains personal opinions, sweeping generalizations, and stereotypes that they
reject. But they also said that doesn’t mean he’s not protected by federal labor law.

“I think the most important thing is that he’d emailed this document and shared it
repeatedly with many Google workers,” said Raudabaugh, now a labor law professor at
Ave Maria School of Law in Naples, Fla. “So it seems to me, and clearly, that he was
implicitly soliciting feedback and support for his position, and this would be protected
under current NLRB case law.”

“There’s arguably a lot in the memo that relates to the terms and conditions of employment,”
Peter Finch, a former NLRB staff attorney and current partner at Davis Wright Tremaine
LLP, told Bloomberg BNA. Finch noted the memo’s discussion of conservative voices
in the workplace and its specific criticisms of Google’s diversity and other programs.

Borden also agreed that the memo, or portions of it, would likely be considered concerted
activity.

“He’s alleging that promotions and such are being afforded to folks on a discriminatory
basis, due to gender or something else,” Borden said. “Those types of complaints in
a document circulated to dozens or hundreds of his co-workers falls squarely in the
scope of concerted activity as the board has recently expanded it.”

Enough for Reinstatement?

The board created its test for whether an employee’s behavior is so egregious that
it loses protection of the NLRA in a 1979 case,
Atlantic Steel Co.

The board considers "(1) the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst
was, in any way, provoked by the employer’s unfair labor practices.” Importantly,
the Eighth Circuit noted that this standard applies to workplace misconduct and not
to off-duty conduct such as communications on the picket line.

Because the determination is so fact-dependent, it’s difficult to predict how the
board or a judge would come down in a particular case like Damore’s.

“The portions the board might find are protected are where” Damore “is trying to make
cohort with a specific audience of his co-workers,” Borden said. “Whether or not the
rest of it causes him to lose” is an open question.

To contact the reporter on this story: Hassan A. Kanu in Washington at
hkanu@bna.com

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